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  • S Enchelmaier, '“Free Movement of Goods: Evolution and Intelligent Design In the Foundations Of The European Union”' in P Craig & G de Búrca (ed), The Evolution of EU Law (OUP 2021)
  • JA Armour, J Gordon and G Min, 'Taking Compliance Seriously' (2020) 36 Yale Journal on Regulation 1
    How can we ensure corporations play by the “rules of the game”—that is, laws encouraging firms to avoid socially harmful conduct? Corporate compliance programs play a central role in society’s current response. Prosecutors give firms incentives—through discounts to penalties—to implement compliance programs that guide and monitor employees’ behavior. However, focusing on the incentives of firms overlooks the perspective of managers, who decide how much firms invest in compliance. We show that stock-based pay, ubiquitous for corporate executives, creates systematic incentives to short-change compliance. Compliance is a long-term investment for firms, whereas managers’ time horizon is truncated to the date they expect to liquidate stock. Moreover, investors find it hard to value compliance programs because firms routinely disclose little or nothing about their compliance activities. We show that stock-compensated managers prefer not to disclose compliance because such disclosure can reveal private information about a firm’s propensity to misconduct. As a result, both managers and markets are likely myopic about compliance. How can this problem be resolved for the benefit of society and shareholders? Boards of directors are supposed to act as monitors to control managerial agency costs. We show that the increasing use of stock-based compensation for directors, justified as a means of encouraging more vigorous oversight of business decisions, also has a corrosive effect on boards’ monitoring incentives for compliance. Directors in theory face liability for compliance oversight failures, but only if so egregious as to amount to bad faith. We argue that this standard of liability, established in an era before ubiquitous stock-based compensation for both managers and directors, has now become too lax. We propose more assertive directors’ liability for compliance failures, limited in quantum to a proportionate clawback of stock-based pay. This would add power to the alignment of directors’ interests with those of shareholders—directors would stand to lose more than just a decrease in the value of their stock in the event of a compliance failure—but limiting liability in this way would avoid pushing boards to overinvest in compliance. We outline ways in which this proposal could be implemented either by shareholder proposals or judicial innovation.
  • E Fisher, 'Executive Environmental Law' (2020) 83 Modern Law Review 163
    DOI: 10.1111/1468-2230.12456
    The Draft Environment (Principles and Governance) Bill published by DEFRA in late 2018 is part of a process of reimagining environmental law in light of Brexit. The Draft Bill creates frameworks for policy statements on environmental principles and environmental implementation plans, as well as creating a new enforcement body – the Office for Environmental Protection. This Draft Bill is, at the very least, an ineffectual response to the challenges of environmental law post‐Brexit. More alarmingly, it raises the possibility of a legal future in which the executive dominates how the norms, ambitions, and accountabilities of environmental law are defined. These are matters of concern for environmental and public lawyers alike.
    ISBN: 1468-2230
  • P Eleftheriadis, A Union of Peoples: Europe as a Community of Principle (Oxford University Press 2020)
    Many political and legal philosophers compare the EU to a federal union and believe its basic laws should be subject to the standards of constitutional law, and thus find it lacking or incomplete. This book proposes a rival theory: that the substance of EU law is not constitutional, but international, and provides a close examination of the treaties and the precedents of the European courts to explore this concept further. Just like international law, EU law applies primarily to the relations between member states, who have democratically chosen to adapt their constitutional arrangements in order to share legislative and executive powers with their partners. The legal architecture of the European Union is thus best understood under a theory of dualism and not pluralism. According to this 'internationalist' view, EU law is part of the law of nations and its distinction from domestic law is a matter of substance, not form. This arrangement is supported by a cosmopolitan theory of international justice, which we may call progressive internationalism. The EU is a union of democratic peoples, freely organizing their interdependence on the basis of principles of equality and reciprocity. Its central principles are not the principles of a constitution, but cosmopolitan principles of accountability, liberty, and fairness.
    ISBN: 9780198854173
  • JA Armour and M Sako, 'AI-enabled business models in legal services: from traditional law firms to next-generation law companies?' (2020) 7 Journal of Professions and Organization 27
    What will happen to law firms and the legal profession when the use of artificial intelligence (AI) becomes prevalent in legal services? We address this question by considering three related levels of analysis: tasks, business models, and organizations. First, we review AI’s technical capabilities in relation to tasks, to identify contexts where it is likely to replace or augment humans. AI is capable of doing some, but not all, legal tasks better than lawyers and is augmented by multidisciplinary human inputs. Second, we identify new business models for creating value in legal services by applying AI. These differ from law firms’ traditional legal advisory business model, because they require technological (non-human) assets and multidisciplinary human inputs. Third, we analyze the organizational structure that complements the old and new business models: the professional partnership (P2) is well-adapted to delivering the legal advisory business model, but the centralized management, access to outside capital, and employee incentives offered by the corporate form appear better to complement the new AI-enabled business models. Some law firms are experimenting with pursuing new and old business models in parallel. However, differences in complements create conflicts when business models are combined. These conflicts are partially externalized via contracting and segregated and realigned via vertical integration. Our analysis suggests that law firm experimentation with aligning different business models to distinct organizational entities, along with ethical concerns, will affect the extent to which the legal profession will become ‘hybrid professionals’.
    ISBN: 2051-8811
  • P Eleftheriadis, 'Corrective Justice Among States' (2020) 2 Ius Cogens 7
    DOI: 10.1007/s42439-019-00013-x
    The debate concerning solidarity and justice among states has missed the key contribution made to international affairs by corrective justice. Unlike distributive justice, which applies within states, corrective justice applies among states and in particular to cooperative arrangements creating interdependence among them. Corrective justice does not require fairness in outcomes, but only fairness in the risks and opportunities undertaken by the parties to any cooperative agreement. Corrective justice requires redress in cases of loss caused by unfairness. An important illustration of corrective justice at work is the Eurozone’s response to the financial crisis. The assistance offered to the states most burdened by financial turmoil can be best interpreted not as an attempt to arrive at fair shares, but as an attempt to remedy the losses unfairly caused to some states by the mistakes made by all of them, when designing the Eurozone’s architecture.
    ISBN: ISSN: 2524-3977
  • JA Armour, B Garrett, J Gordon and G Min, 'Board Compliance' (2020) 104 Minnesota Law Review 101
    What role do corporate boards play in compliance? Compliance programs are internal enforcement programs, whereby firms train, monitor and discipline employees with respect to applicable laws and regulation. Corporate enforcement and compliance failures could not be more high-profile, and have placed boards in the position of responding to systemic problems. Both case law on boards’ fiduciary duties and guidance from prosecutors suggest that the board should have a continuing role in overseeing compliance activity. Yet very little is actually known about the role of boards in compliance. This paper offers the first empirical account of public companies’ engagement with compliance at the board level, drawing on director-level data from BoardEx and data on federal organizational prosecutions from the Duke University and University of Virginia Corporate Prosecution Registry. We find that, despite a standard account that compliance has boomed, few boards actually adopt compliance committees. Less than five per cent of U.S. public companies have done so, although the proportion has grown steadily over time. We use our data to explore why boards establish compliance committees. Our results suggest that there is room for more constructive engagement with compliance by many boards. We conclude by recommending ways in which board compliance might be facilitated or encouraged: reconsidering norms about board size and independence, enhancing accountability of directors to regulators, and tightening state law fiduciary duties regarding oversight.
  • P Eleftheriadis, 'Book Review: EU Legal Acts ' (2020) Common Market Law Review [Review]
  • P P Craig, 'Brexit a Drama: The Endgame—Part I' (2020) 45 European Law Review 163
  • Maurice Stucke and AE Ezrachi, Competition Overdose - How Free Market Mythology Transformed Us from Citizen Kings to Market Servants (HarperCollins 2020)
    Using dozens of vivid examples to show how society overprescribed competition as a solution and when unbridled rivalry hurts consumers, kills entrepreneurship, and increases economic inequality, two free-market thinkers diagnose the sickness caused by competition overdose and provide remedies that will promote sustainable growth and progress for everyone, not just wealthy shareholders and those at the top. Whatever illness our society suffers, competition is the remedy. Do we want better schools for our children? Cheaper prices for everything? More choices in the marketplace? The answer is always: Increase competition. Yet, many of us are unhappy with the results. We think we’re paying less, but we’re getting much less. Our food has undeclared additives (or worse), our drinking water contains toxic chemicals, our hotel bills reveal surprise additions, our kids’ schools are failing, our activities are tracked so that advertisers can target us with relentless promotions. All will be cured, we are told, by increasing the competitive pressure and defanging the bloated regulatory state. In a captivating exposé, Maurice E. Stucke and Ariel Ezrachi show how we are falling prey to greed, chicanery, and cronyism. Refuting the almost religious belief in rivalry as the vehicle for prosperity, the authors identify the powerful corporations, lobbyists, and lawmakers responsible for pushing this toxic competition—and argue instead for a healthier, even nobler, form of competition. Competition Overdose diagnoses the disease—and provides a cure for it. The book was listed as one of Inc. Magazine top business books you need to read in 2020 and one of Publishers Weekly Top 10 Business & Economics books for Spring 2020.
  • P Eleftheriadis, 'Cosmopolitan Legitimacy' in Jorge Fabra (ed), Jurisprudence in a Globalized World (Edward Elgar 2020)
  • P P Craig and M Markakis, 'EMU Reform' in F Amtenbrink and C Hermann (eds), EU Law of Economic and Monetary Union (Oxford University Press 2020)
  • N. W. Barber, 'Entrenchment' in R Bellamy and J King (eds), The Cambridge Handbook of Constitutional Theory (Cambridge University Press 2020) (forthcoming)
  • P P Craig and G de Burca , EU Law, Text, Cases and Materials (7th edn Oxford University Press 2020)
  • A Romano, L Enriques and JR Macey, 'Extended Shareholder Liability for Systemically Important Financial Institutions' (2020) 69 American University Law Review 967
    Regulators generally have tried to address the problems posed by the excessive risk-taking of Systemically Important Financial Institutions (SIFIs) by placing restrictions on the activities in which SIFIs engage. However, the complexity of these institutions makes such attempts necessarily imperfect. This Article proposes to address the problem at its very source, which is the incentives that SIFI owners have to push for excessive risk-taking by managers. Building on the traditional rule of “double liability,” we propose to modify the current (general) rule limiting the liability of SIFI shareholders to the amount of their initial investments in such companies. We propose replacing the extant limited liability regime with a new system that imposes additional liability over and above what SIFI shareholders already have invested in a preset amount that varies with a SIFI’s centrality in the financial network. Our liability regime has a number of advantages. First, by increasing shareholder exposure to downside risk, it discourages excessive risk-taking. At the same time, by placing a clearly defined ceiling on shareholders’ total liability exposure, it will not obliterate shareholders’ incentives to invest in the first place. Second, the liability to which shareholders are exposed is carefully tailored to the level of systemic risk that their institution creates. Thus, our rule induces shareholders to account for the negative externality SIFIs can impose without unduly stifling such financial institutions’ role within the financial system and in the wider economy. Third, as the amount of liability is clearly defined ex ante using the rigorous tools of network theory, our rule minimizes the influence of interest groups and the impact of idiosyncratic government decisions. Last, as markets know in advance the amount of liability to which shareholders are exposed, our rule favors the creation of a vibrant insurance and derivative market so that the risk of SIFIs defaults can be allocated to those who can better bear it.
  • E Fisher, Jeff King and Alison Young (eds), he Foundations and Future of Public Law: Essays in Honour of Paul Craig (OUP 2020)
  • P Davies, Introduction to Company Law (3rd edn OUP 2020)
    The book analyses the mechanisms through which the law provides an organisational structure for the conduct of business. Given that structure, the book then discusses how the law seeks to reduce the costs of using it, whether these are costs for managers, shareholders as a class, non-controlling shareholders, creditors or employees, identifying the trade-offs involved. This discussion takes in both the Companies Act 2006 and various types of “soft law”, notably the Corporate Governance and Stewardship Codes. This third edition contains two new chapters: one on liability and enforcement and the other on the social function of corporate law. Both are issues that have come to prominence in the aftermath of the financial crisis of 2007 to 2009.
    ISBN: 978-0-19-885492-0
  • L Enriques, Alessandro Romano and T Wetzer, 'Network-Sensitive Financial Regulation' (2020) 45 The Journal of Corporation Law 351
    Shocks that hit part of the financial system, such as the subprime mortgage market in 2007, can propagate through a complex network of interconnections among financial and non-financial institutions. As the financial crisis of 2007-2009 has shown, the consequences for the entire economy of such systemic risk materializing can be catastrophic. Following the crisis, economists and policymakers have become increasingly aware that the structure of the financial system is a key determinant of systemic risk. A wide consensus now exists among them that network theory is the natural framework for studying systemic risk. Yet, most of the existing rules in financial regulation are still “atomistic,” in that they fail to incorporate the fact that each individual institution is part of a wider network. This Article shows that policies building upon insights from network theory (network-sensitive policies) can address systemic risk more effectively than traditional atomistic policies, also in areas where an atomistic approach would seem natural, such as the corporate governance of systemically important financial institutions. In particular, we consider four prescriptions for the governance of systemically important institutions (one on directors’ liability, two on executive compensation and one on failing financial institutions’ shareholders appraisal rights in mergers) and show how making them network-sensitive would both increase their effectiveness in taming systemic risk and better calibrate their impact on individual institutions.
    ISBN: 0360-795X
  • A Briggs, 'Private International Law and the Privy Council' in Charles Mitchell and Stephen Watterson (eds), The World of Maritime and Commercial Law: Essays in Honour of Francis Rose (Hart 2020)
    Analysis of the contribution (positive and negative) to the private international law of those jurisdictions whose local decisions are liable to be appealed to the Privy Council, and the drawing of conclusions which appear to follow from the evidence.
    ISBN: 978-1-5099-3242-9
  • P P Craig, 'Proportionality and Constitutional Review' (2020) 3 University of Oxford Human Rights Hub Journal 87
  • P P Craig, 'Response to Loughlin’s Note on Miller/Cherry ' (2020) Public Law 282
  • JA Armour and H Eidenmueller, 'Self-Driving Corporations?' (2020) 10 Harvard Business Law Review 201
    What are the implications of artificial intelligence (AI) for corporate law? In this essay, we consider the trajectory of AI’s evolution, analyze the effects of its application on business practice, and investigate the impact of these developments for corporate law. Overall, we claim that the increasing use of AI in corporations implies a shift from viewing the enterprise as primarily private and facilitative, towards a more public, and regulatory, conception of the law governing corporate activity. Today’s AI is dominated by machine learning applications which assist and augment human decision-making. These raise multiple challenges for business organization, the management of which we collectively term “data governance.” The impact of today’s AI on corporate law is coming to be felt along two margins. First, we expect a reduction across many standard dimensions of internal agency and coordination costs. Second, the oversight challenges—and liability risks—at the top of the firm will rise significantly. Tomorrow’s AI may permit humans to be replaced even at the apex of corporate decision-making. This is likely to happen first in what we call “self-driving subsidiaries” performing very limited corporate functions. Replacing humans on corporate boards with machines implies a fundamental shift in focus: from controlling internal costs to the design of appropriate strategies for controlling “algorithmic failure,” that is, unlawful acts by an algorithm with potentially severe negative effects (physical or financial harm) on external third parties. We discuss corporate goal-setting, which in the medium term is likely to become the center of gravity for debate on AI and corporate law. This will only intensify as technical progress moves toward the possibility of fully self-driving corporations. We outline potential regulatory strategies for their control. The potential for regulatory competition weakens lawmakers’ ability to respond, and so even though the self-driving corporation is not yet a reality, we believe the regulatory issues deserve attention well before tomorrow’s AI becomes today’s.
  • JA Armour, 'Shareholder Rights' (2020) 36 Oxford Review of Economic Policy 314
    ‘Shareholder rights’ are the legal entitlements of shareholders vis-à-vis companies in which they invest. A large body of research has sought to investigate how shareholder rights foster accountability of controllers. The concern has been that without accountability, managers and dominant shareholders will use their power to further their own interests at the expense of outside investors. A contrasting concern is that strengthening shareholder rights may come at the expense of other parties, which may also lead to misallocation of corporate resources. A recently-emerging body of research suggests that the relationship between shareholder rights and social welfare is not monotonic, but rather inverse-U-shaped. We argue that the calibration and impact of shareholder rights depends crucially on the institutional channel(s) through which they are implemented—voting, litigation, and/or market pricing. In particular, the market pricing channel intensifies the effects of shareholder rights in ways that can be excessive. This can harm not only other constituencies but also shareholders, as it can promote short-termism and systemic externalities. These problems are less pronounced for shareholder rights implemented through the voting channel.
    ISBN: 0266-903X
  • P Eleftheriadis, 'The German Constitutional Court’s Weiss judgment is a Failure of German Constitutionalism' (2020) 116 ELIAMEP Policy Brief
    In this paper Prof. Pavlos Eleftheriadis offers a first reaction to the judgment of the German Federal Constitutional Court in Weiss regarding the ECB’s bond buying programme. He argues that the judgment is an unprecedented revolt against the law of the European Union. • The judgment of the German Federal Constitutional Court in Weiss is an unprecedented revolt against the shared law of the European Monetary Union • The Court has departed from its prior case law and especially the well-established precedents in Lisbon (2009) and Honeywell (2010) which explained how a democratic constitution is open to European integration • The Court’s arguments seem to ignore the clear constitutional obligation created by Article 23 of the German Basic Law to comply with EU law in all cases, except when there are very serious constitutional reasons not to do so. • The Court promotes an unusual theory of the ‘constitutional identity’ of Germany as a matter of the continuing ‘popular sovereignty’ of the German people, which according to the Court can only be expressed through the present Bundestag and – it appears – cannot be delegated, shared or exercised in common with other nations. • The Court’s statist theories, which have no imitators in other European courts, place it now well outside the European mainstream. • The Court’s doctrines create a potential constitutional crisis in Germany, since they antagonise the clear democratic choice of the German people to remain a member of the Eurozone, on the basis of novel doctrines about identity, democracy and popular sovereignty